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TMI Blog2015 (4) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... served that assessee did not file corroborating evidence. Considering these facts and circumstances of the case, though the non-substantiation of explanation during the course of assessment proceedings may be a good ground for making the addition but while levying the penalty, there should be some material on record to suggest that the source which was explained by the assessee was not true or correct. It is not a case where any their person not related to the assessee has paid the school fee of the children, but a very close relation has paid the said amount. Therefore, we are of the opinion that it is not a very fit case for levy of concealment penalty. Moreover, as per decision of Hon’ble Bombay High Court in the case of Nayan Builders & Developers [2011 (3) TMI 46 - ITAT MUMBAI] when a question of law has been admitted on the impugned addition, then no case is made out for imposition of penalty. - Decided in favour of assessee. - ITA NO.4224/MUM/2013 - - - Dated:- 5-3-2015 - Shri I.P. Bansal And Shri R.C.Sharma JJ For the Appellant : Shri Jeetendra Jain For the Respondent : Shri Akhilendra Yadav ORDER PER I.P.BANSAL, J.M: This is an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hroff. The assessee was asked regarding details and source of the payment of fees to which the assessee has not submitted any satisfactory explanation in respect of genuineness and source of foreign exchange remittance received from the assessee s mother-in-law therefore the same ₹ 16,44,426/- is being added to the total income being unexplained investment u/s. 68 of the Act. Penalty proceedings u/s. 271(1)(c) is being separately initiated for furnishing inaccurate particulars of income. The aforementioned addition has been confirmed by the Tribunal in quantum proceeding vide order dated 21/11/2012 passed in ITA No.7843/Mum/2010, copy of which is placed at pages 8 to 14 of the paper book. The addition has been confirmed as per following observations: 12. Ground No. 8 relate to the addition of ₹ 16,44,426/- as unexplained cash credit u/s. 68 of the Act. 13. A perusal of the assessment order shows that the assessee has claimed that the school fees of his children amounting to ₹ 16,44,426/- was paid by his mother-in-law. We find that similar issue had come up for hearing before us in ITA No. 6457/M/08 pertaining to A.Y. 2005-06 wherein we have held at para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03/04/2013 passed in Income Tax Appeal No.240 of 2013 the following questions of law have been admitted and copy of such order has been filed at page-15 of the paper book. INCOME TAX APPEAL No.240 of 2013 Mr. Jackie Shroff Appellant Versus The Commissioner of Income Tax, City XI, Mumbai . Respondent Mr. Jeetendra Jain with Mr.B.D. Damodar by M/s. Kanga Co. for the appellant Mr.PC Chhotaray for the respondent. CORAM : J.P.Devadhar M.S.Sanklecha, JJ Date : 3d April 2013 P.C.: 1. Heard. Admit on the following substantial questions of law. a) Whether, on a true and proper construction of Section 145 of the Act, the Tribunal was justified in rejecting the method of accounting regularly employed by the appellant and accepted by the Revenue? b) Whether discharge of moral obligation of the Appellant directed by his mother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en considered. It is a case where the assessee had submitted the explanation during the assessment proceeding itself and the source of payment of school fee was mentioned to be payments made by mother-in-law of the assessee. Thus, the persons who has paid the money is closely related to the family of the assessee. The AO has confirmed this addition for the reason that assessee failed to prove the genuineness of the source of payment. However, it is not the case of AO that the contention of the assessee that the source of payment was mother-in-law is not correct. The aforementioned addition was made on account of information received by the Department and explanation was filed by the assessee. The Tribunal also upheld the addition by relying upon assessment year 2005-06 and the addition has been confirmed for the reason that source and genuineness of the transaction was not accepted in A.Y 2005-06. It is also observed that assessee did not file corroborating evidence. Considering these facts and circumstances of the case, though the non-substantiation of explanation during the course of assessment proceedings may be a good ground for making the addition but while levying the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax-7 Appellant v/s. M/s. Nayan Builders and Developers . Respondent Mr. Abhay Ahuja for Appellant. Mr. Sanjiv M. Shah for Respondent CORAM : S.C. DHARMADHIKARI AND B.P. COLABAWALA JJ. DATE : 8TH JULY 2014 P.C .: 1. Having heard Mr. Ahuja, learned counsel appearing on behalf of the Appellant, we find that this Appeal cannot be entertained as it does not raise any sub substantial question of law. The imposition of penalty was found not to be justified and the Appeal was allowed. As a proof that the penalty was debatable and arguable issue, the Tribunal referred to the order on Assessee s Appeal in Quantum proceedings and the substantial questions of law which have been framed therein. We have also perused that order dated 27th September 2010 admitting Income Tax Appeal No.2368 of 2009. In our view, there was no case made out for imposition of penalty and the same was rightly set aside. The Appeal raises no substantial question of law, it is dismissed. No costs. 5.2 In view of above discussions we delete the impugned penalty and the appeal filed by the assessee is allowed. 6. In the result, the appeal filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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